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Oral sex doesn’t fall under ‘aggravated sexual assault’ in POCSO, says Allahabad HC

A lower court had convicted a man of forcing a 10-year-old boy to perform oral sex. It also reduced his jail sentence from 10 years to seven years.

By: Express News Service | Lucknow |
Updated: November 23, 2021 9:36:04 pm
A lower court in Jhansi in 2018 had convicted the man under Section 6 of the POCSO Act. (File)

The Allahabad High Court has reduced the jail sentence of a man convicted of sexually assaulting a 10-year-old boy from 10 years to seven years, saying that oral sex does not fall in the category of “aggravated sexual assault or sexual assault” as per the provisions of the POCSO Act (Protection of Children from Sexual Offences Act).

While hearing a criminal appeal filed by the convict, Justice Anil Kumar Ojha, in his order, stated: “From the perusal of the provisions of the POCSO Act, it is clear that the offence committed by the appellant neither falls under Section 5/6 of the POCSO Act nor under Section 9(M) of the POCSO Act because there is penetrative sexual assault in the present case as the appellant has put his penis into the mouth of the victim. Putting penis into the mouth does not fall in the category of aggravated sexual assault or sexual assault. It comes into the category of penetrative sexual assault which is punishable under Section 4 of the POCSO Act.”

While Section 4 of the POCSO Act deals with penetrative sexual assault, Sections 5 and 6 are about “aggravated penetrative sexual assault”.

A lower court in Jhansi in 2018 had convicted the man under Section 6 of the POCSO Act and other sections of the IPC, and sentenced him to 10 years of imprisonment.

The incident dates back to March 22, 2016, when the father of the 10-year-old boy alleged that the accused came to his house in Jhansi and took his son to a nearby temple. The accused gave his son Rs 20 and asked him to perform oral sex on him, the father complained.

In their chargesheet, police had charged the man under IPC sections 377 (unnatural offences), 506 (criminal conspiracy), and 3/4 of the POCSO Act.

The Additional Sessions court judge, however, charged the appellant under IPC sections 377 and 506, and sections 5/6 of the POCSO Act.


Challenging the conviction by the lower court, the man, through his lawyer, told the High Court that the offence under section 6 of the POCSO Act was not made out against him, and that he has been wrongly convicted under the said POCSO provision.

After going through the records and provisions of the POCSO Act, the judge in his order said: “I am of the considered opinion that the appellant should be punished under section 4 of the POCSO Act because the act done by appellant falls in the category of penetrative sexual assault”.

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